Health and welfare power of attorney

A health and welfare lasting power of attorney is a legal document which allows you to appoint people you trust to make decisions about health treatments and personal care for you if you lose the mental capacity to make such decisions for yourself.

Karen Starkey, a specialist with KWW Solicitors of East Molesey, explains how this document gives your attorney the power to make decisions, on your behalf and in your best interests, in regard to things like eating, washing, medical care, where you should live, or whether to continue life-sustaining treatment.

The exact decisions they can take for you will depend on your instructions. For example, an attorney can only consent to or refuse life-sustaining treatment on your behalf if you specifically state this.

You can give your healthcare attorney power to refuse medication or particular types of treatment, such as:

  • cardiac resuscitation after a heart attack;
  • a blood transfusion, for example if you do not want one for religious reasons; or
  • electroconvulsive therapy.

Your healthcare attorney is not allowed to refuse treatment for you if:

  • you have the capacity to refuse the treatment for yourself;
  • the treatment is prescribed by the clinician in charge after you have been sectioned under the Mental Health Act – the only treatment your attorney has the power to refuse in such circumstances is electroconvulsive therapy; or
  • it is an emergency situation and the treatment is considered life-saving – unless you have made it clear that life-saving treatment should be refused.

A healthcare and welfare attorney cannot make decisions about your finances, business affairs or property matters. If you want an attorney to do this, you would need to make a separate property and financial affairs lasting power of attorney.

When does it come into force?

Health and welfare attorneys will only start making such decisions for you if you lose mental capacity. This may happen due to mental health problems, a brain injury caused by an accident or a stroke, alcohol or drug abuse, a learning disability, or as a result of a condition such as dementia. 

Under the Mental Capacity Act 2005, you would be judged to have lost mental capacity if you are unable to:

  • understand the information relevant to the decision;
  • retain that information;
  • use or weigh that information as part of the process of making the decision; or
  • communicate your decision, whether by talking, using sign language or any other means.

There is a two-stage test which must be applied to decide whether you have mental capacity. This involves asking:

  • if there is an impairment of or disturbance in the functioning of your mind or brain? And if so:
  • is the impairment or disturbance sufficient that you lack the capacity to make a particular decision?

Your family or carers will usually be responsible for deciding if you have mental capacity in everyday cases.  For example, a formal assessment by a healthcare professional will not be required to decide whether you are able to dress or cook for yourself.

Where more complex decisions are involved, such as consent for surgery, a doctor or healthcare professional will decide whether or not you have capacity to consent.

It is your attorney’s duty, as far as possible, to help you make your own decisions. The law is clear that assumptions made about your lack of capacity cannot be based on your age, appearance or condition.

Just because you are incapable of making one kind of decision does not automatically mean you cannot make other types of decision – this needs to be assessed on a case by case basis.

It is a good idea to get advice from a specialist solicitor to guide you through the process of making a power or attorney. They can advise you on selecting the right attorneys, talk you through the sorts of decisions that might be required if you lose mental capacity, and outline your options to ensure that your wishes are known. They will also ensure that the form is completed correctly and is legally valid. 

If you need help with setting up a health and welfare power of attorney, please contact Karen Starkey on 0208 979 1131 or email k.starkey@kww.co.uk.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.


Buying a retirement home

The United Kingdom’s population is aging rapidly and, fortunately, higher living standards mean most of us will enjoy a long and active retirement. As we grow older our housing needs often change and, if you are approaching retirement you may have already started to think about your options. Here, Sarah Trickey, our residential conveyancing expert, looks at some of the things you need to consider when buying a home for your retirement.

Funding a house purchase in later life

Many older homeowners can afford to fund their purchase from the net sale proceeds of their existing home. If you are in this fortunate position, you can finally become mortgage-free. However, this does mean synchronising your sale and purchase, or selling your existing home first, so you will need to be organised and find a conveyancer who can keep your sale on track.

If you do need to borrow, finding the right mortgage may be harder as you get older. Many lenders place age restrictions on who can borrow, and some will not lend against certain types of retirement property. Your lender may agree to transfer your existing mortgage, and recent changes have made it easier for older borrowers to take out a fresh mortgage.

For example, several lenders now offer retirement mortgages which allow you to pay just the interest each month. The loan is paid off when your home is finally sold. However, this is still something of a niche area and it is important to get specialist independent financial advice to ensure any arrangement is right for you.

The difference between freehold and leasehold

Most properties in dedicated retirement complexes or sheltered accommodation are leasehold. So too are most flats which are another popular option for downsizers. If you are used to owning a freehold, some of the differences between freehold and leasehold may surprise you. With a freehold, you own your home outright. In contrast, a lease only gives you the right to occupy the property for a set number of years. A lease is therefore a diminishing asset.

You will also have a landlord, to whom you must pay ground rent and, usually, a service charge to cover insurance and the upkeep of common parts. This can be an advantage if it relieves you of the responsibility for repairs and for keeping the garden tended. However, the downside is that it will also probably add considerably to the ongoing costs of ownership and you will need to factor this into your budget.

Additional restrictions

A lease will also include restrictions on your use of the property. For example, you may not be allowed to keep pets or you may need permission to make alterations. An experienced conveyancing solicitor can explain these provisions to you, so you can ensure the property still meets your needs. This is particularly important with retirement properties, where leases often contain additional restrictions that you would not find elsewhere.

For example, leases may restrict ownership to people over a certain age. This means there will be fewer potential buyers when you, or your heirs, come to sell, and this may affect your property’s value. Some leases also prevent you from sharing occupation with another family member or carer who does not meet the age requirement. This could cause problems if your personal circumstances change or you need additional live-in help.

Additional charges

Service charges for retirement properties are often high compared to conventional homes because of the additional healthcare facilities on offer. As well as factoring these costs into your budget, you should consider whether they are likely to increase and by how much. Remember too, that you will still have these expenses even if the property is empty, for example, if you go into long-term care.

You may be attracted to a development because of the additional services provided, for example an on-site restaurant or resident manager. However, some of these may be discretionary and could cease in the future. Your solicitor can check which services the landlord is obliged to provide and which can be withdrawn.

What happens on resale?

Some leases of retirement homes impose additional charges if you want to sell. Typically, these range from one per cent to thirty per cent of your home’s value. In some cases, these charges will also apply if you die and your property passes to your loved ones or next of kin. Unfortunately, these types of provision, and their consequences, are not always clear to buyers.

For advice on buying a home for your retirement, or buying or selling a property generally, please contact Sarah Trickey on 020 8979 1131 or email s.trickey@kww.co.uk

The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published.   Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.